Filed 10/19/17 In re Hugo T. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

The appeal relates to a juvenile court proceeding that took place 29 years ago. On October 3, 2016, pursuant to section 782 of the Welfare and Institutions Code,[1] appellant, Hugo T., who was then 43 years of age, moved in the San Mateo County Superior Court to dismiss two delinquency petitions sustained by the juvenile court in 1988, when he was 15 years of age. This appeal is from the denial of that petition.

Appellant’s court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant’s counsel has represented that she advised appellant that a Wende brief would be filed in this case and he could file a supplemental brief raising any issues he wishes to call to the court’s attention. Appellant has filed no such brief.

FACTS AND PROCEEDINGS BELOW

Appellant’s 1988 Juvenile Offenses

In June 1988, the San Mateo County District Attorney filed a petition pursuant to section 602, alleging appellant had committed a variety of sexual assault offenses against two victims. The following month the district attorney filed a second petition alleging eight additional counts against a third victim. Following a contested jurisdictional hearing, the court dismissed a number of counts from each petition, but sustained seven allegations from the first petition and four from the second. The 11 sustained allegations constituted violations of six provisions of the Penal Code: one violation of Penal Code section 243.4 (sexual battery), two violations of Penal Code section 261.1, subdivision (a)(2) (rape); one violation of Penal Code section 286, subdivision (a) (sodomy), five violations of Penal Code section 288, subdivision (a) (lewd and lascivious acts with a child under 14), one violation of Penal Code section 288a, subdivision (b) (oral copulation with a person under 18), and one violation of Penal Code section 289, subdivision (a) (forcible penetration).

At the dispositional hearing on September 1, 1988, the juvenile court committed appellant to the California Youth Authority for the maximum term of 10 years. Appellant was discharged from the CYA almost 10 years later, on June 23, 1998.

About 28 years later, on October 3, 2016, appellant filed his petition to set aside the jurisdictional findings made in 1988 and dismiss the petitions filed that year under section 782.

Section 782 states as follows: “A judge of the juvenile court in which a petition was filed may dismiss the petition, or may set aside the findings and dismiss the petition, if the court finds that the interests of justice and the welfare of the person who is the subject of the petition require that dismissal, or if it finds that he or she is not in need of treatment or rehabilitation. The court has jurisdiction to order dismissal or setting aside of the findings and dismissal regardless of whether the person who is the subject of the petition is, at the time of the order, a ward or dependent child of the court. Nothing in this section shall be interpreted to require the court to maintain jurisdiction over a person who is the subject of a petition between the time the court’s jurisdiction over that persons terminates and the point at which his or her petition is dismissed.”

Appellant’s Motion to Dismiss and the People’s Opposition

Appellant’s motion to dismiss the allegations of the 602 petition sustained in 1988 consists almost entirely of his own declaration, which essentially relates the following information: Appellant was 23 years of age when released from CYA. He was technically required to register as a sex offender[2] but, because he was immediately turned over to federal immigration authorities and deported to El Salvador, he was not required to register in that country or in the United States. In 1997, after attending a university in El Salvador, appellant sought readmission to the United States, obtained a green card and returned to his former residence in Palo Alto, where he began working. Because immigration authorities had told him that once he left the country, his juvenile “charges would be closed and sealed,” he had “no idea that I had to contact my parole officer, nor that I had to register with the police.” As a result, two months after he returned he was arrested for failing to register and sentenced to three months in jail and three months on probation. After being released from jail he was turned over to juvenile authorities for failing to report to his parole officer and served an additional eight months in CYA custody. Although subject to an immigration hold while confined at the CYA, appellant was not turned over to immigration authorities at the end of his term but released. However, when appellant went to an immigration office to obtain a green card to replace that previously taken from him he was arrested by federal authorities and placed in custody in Arizona.

With the assistance of counsel, appellant successfully challenged federal efforts to again deport him. After his release from detention he returned to San Mateo County, got married, and had a daughter. He then began working at and attending Foothill College. Later he obtained employment as a tow truck driver processing impounded motor vehicles for various police departments in Santa Clara County.

One night in or about 2000, Palo Alto police called in an impound of a vehicle containing a laptop and camera. His employer’s policy was for drivers to retrieve items found in towed vehicles and log them in at the tow truck company’s office. Appellant put the laptop and camera in his truck to take them back to the office for safe-keeping. What happened next is described in appellant’s declaration as follows:

“An hour later, the police called asking where the car was located because it was supposed to be taken to the police station to be searched. [¶] I returned the items to the car, but did not realize the camera had slipped off the seat onto the floor of the truck. I then took the car to the police station as they requested. [¶] Around 4:30 a.m. the police called for dispatch to send someone to bring the car back for storage. [¶] I was drowsy and sleepy and the officers asked me if anyone else had touched the car but I said I was the only one working. He then asked for my personal information because there was an item missing. I complied and gave the officer my information and took the car back to our yard. [¶] I told the police I found the camera, and when I went to drop it off, I was arrested. [¶] The police said they did not believe my story. [¶] The next day I got out of custody and went to the office to explain what happened. [¶] I ended up losing my job and getting criminally charged and plead no contest to a misdemeanor, receiving time served, six months’ probation and community service on a petty theft charge. [¶] I completed probation, got a lawyer, and got both the failure to register conviction and the petty theft conviction expunged. [¶] After I expunged the Santa Clara cases, I went to San Mateo to find out if I could seal this case [i.e. the sustained 602 petition]. [¶] After being given the paperwork and instructions from the Court Clerk of the San Mateo County Juvenile Court, immigration [officers] came to my house with [officers of] the Palo Alto Police Department. [¶] I spent another 8 months in custody in San Jose and one (1) year in Bakersfield. [¶] I retained another lawyer, Dominic Capece, and my case became law because failure to register was moral turpitude. As a result, with a petty theft, I had two crimes of moral turpitude. [¶] Under the authority of the decision that resulted from my case, people began to be deported.”

Appellant’s declaration goes on to state that his request to seal the record of his 1988 juvenile proceeding was denied by the San Mateo County Juvenile Court.

The declaration also states that appellant now lives in Palo Alto with his wife and two children, is employed by Corinthian Transportation Company in Campbell, and annually registers as a sex-offender with the Palo Alto Police Department.

Finally, appellant’s declaration explains why he is asking to be relieved of the obligation to register: “I was fifteen (15) years old at the time of the trial of the offenses and I am now forty-two (42) years old. [¶] I am asking the court to dismiss the sustained petitions in the interest of justice because I have been treated and rehabilitated. Although I am not registered under Megan’s Law [because the juvenile offenses pre-dated that law], I still have to check in with the police every year. [¶] I would really like to be able to freely attend events with my children and not jeopardize my children’s education or my family’s reputation by my past mistake. Specifically, the fact that I have to continue to register every year opens myself and my family up to the possibility that the community will find out about my past. I have worked hard to give my family a good life and do not want to jeopardize my children’s education or my ability to work or live in Palo Alto.”

The People’s opposition to appellant’s motion to dismiss, which describes in detail appellant’s sexual offenses, points out that these offenses are so serious that a juvenile charged with such an offense may be prosecuted as an adult pursuant to section 707, subdivision (b), and the record of a juvenile convicted of an offense listed in that statute may not be sealed. (§ 781, subd. (a).) The People additionally point out that appellant has not lived a law abiding life since his release from CYA, and suffered convictions as an adult for failure to register as a sex offender, producing false information to a police officer and theft. Commending appellant for the progress he has made and expressing hope he will succeed in his future endeavors, the district attorney asserted that “mere hope does not merit dismissal of his record, and all of the risks to the public such a dismissal entails (especially the lifting of the requirement of registration as a sex offender).”

The Hearing on the Motion to Dismiss and the Court’s Ruling

At the commencement of the hearing appellant emphasized that the purpose of his motion was to enable him to be “more involved” with his children, particularly his son, who is in grammar school. Asked by the court why he chose to withdraw himself from such involvements, appellant described his fear that if he spent time at the school or mingled with the parents of other school children, teachers or other parents “could look into my past,” and if they “even just Google my name . . . they would find out who I am. Or not necessarily who I am, but whatever is written there says I am.” Appellant admitted that had never happened, but said that was because he stayed away from the school and from other parents and teachers.

Asked by the court to explain his conviction for giving false information to a police officer, appellant said it resulted from his use of his middle name rather than his first name which, as he explained to the officer, was his practice after he left CYA, at which point he stopped using his full name in most interactions with others. Asked why, if he told that to the officer, a false-information charge was filed, appellant answered “[b]ecause the gentleman chose to do that . . . because he was trying to get me off the streets” due to his failure to register.

Asked why he failed to register as a sex offender, appellant said that the requirement was “something I was not aware of. [¶] Because when I was paroled from CYA, I was never let go here in the United States. From CYA, I was transferred over to immigration [and] deported. [¶] So the people from immigration told me, ‘Hey, you know what, you can just go back to your country, and then you can come back. And by the time you come back, all of this will be over and clear.’ [¶] . . . . Not that I’m excusing any of this. But I was institutionalized . . . . [¶] And at this time I was listening to people with authority in the immigration system, I was like, ‘[o]kay. So I believe you.’ ”

Asked by the court how he was able to come back into the country legally, appellant said that he came with his mother[3] and started attending school and doing part-time work “trying to get my life back together here in the United States.” After he had been going to school and working for “maybe four or five months,” a Palo Alto police officer came to his house and arrested him for failure to register as a sex offender. When the officer asked his name, appellant gave his middle name, and when the officer asked for identification appellant gave the officer his passport. The officer noted that appellant’s middle name, which he gave to the officer, was not his full name, and arrested him for not providing his true or full name. After that arrest federal authorities tried but failed to have him deported a second time.

Appellant explained that, as a result of this last encounter with immigration authorities, his name “became logged with immigration,” so that if you “just Google my name, and you will find my [1988 juvenile] case.”

The deputy district attorney’s sole response to the motion at the hearing was: “this was a very serious case. And I think that lifetime registration is something that is necessary to protect society because of the fact that we had multiple victims, and these were some very serious offenses for which the subject was sent to the CYA. And, thereafter, he did have other convictions as an adult.”

The case was at that point submitted to the court, whose entire ruling was as follows: “I am going to deny the motion. Registration is a tool for law enforcement, and I haven’t heard anything today that would compel me to take that tool away. The motion is denied.”

Timely notice of appeal was filed on December 29, 2016.

DISCUSSION

As stated in People v. Haro (2013) 221 Cal.App.4th 718, section 782 “ ‘is a general dismissal statute’ that is similar in its operation to Penal Code section 1385.” (Haro, at p. 721, quoting Derek L. v. Superior Court (1982) 137 Cal.App.3d 228, 232-233.)[4] Though there are important distinctions between the goals and purposes of the criminal justice system and the juvenile system, those distinctions are not material in the context of whether a particular dismissal is or is not “in the interests of justice” (the phrase employed in § 782) or “in furtherance of justice” (the phrase used in Pen. Code, § 1385). (Derek L., at p. 233.) In both contexts, the discretion of the trial court is “very broad.” (Ibid., quoting People v. Kessel (1976) 61 Cal.App.3d 322, 325-326; accord, In re David T., supra, 13 Cal.App.5th at p. 878 [§ 782 “vests broad discretion in the trial court and contains a much higher standard of dismissal” than § 786].)

Although section 782 requires that a dismissal in the interests of justice and the welfare of the person who is the subject of the petition must be based upon judicial “findings” as to why that is so, the text does not require a court that denies a petition to dismiss make findings as to why dismissal would not serve the interests of justice; and neither does any judicial opinion impose such a requirement.

The trial court’s summary denial of appellant’s motion immediately after the matter was submitted was “explained” by no more than a single sentence: “Registration is a tool for law enforcement, and I haven’t heard anything today that would compel me to take that tool away.” The trial court made no mention of the fact that appellant was a juvenile at the time of his offenses, that more than a quarter of a century had passed since the offenses were committed, that during that lengthy period appellant had not committed any sexual offense, or even any other serious criminal offense, and he was no longer “in need of treatment or rehabilitation” within the meaning of section 782; nor did the court indicate that it had considered the alleged effect of the registration requirement on appellant’s ability to perform his parental responsibilities or engaged in any weighing of that factor against the possible threat to public safety that might result from relieving him of that requirement. We cannot condone the peremptory manner in which the court disposed of the motion because a person sitting in the courtroom might reasonably conclude from the court’s conduct that it did not take appellant’s motion seriously and adjudicate it thoughtfully after weighing the competing considerations. The appearance that this happened—even if it did not, as may be the case—undermines respect for the judicial enterprise.

On the other hand, as earlier noted, we cannot be blind to the fact that the court’s discretion in a proceeding such as this is “very broad” and neither the text of section 782 nor any judicial authority requires that the denial of a motion to dismiss pursuant to that statute be accompanied by findings. Moreover, the number and seriousness of appellant’s prior offenses and his subsequent offenses as an adult clearly provide bases upon which denial of the motion can be justified.

For the foregoing reasons, and also because our review of the record does not disclose any other arguably erroneous ruling, we cannot find in the record any arguable legal issue warranting briefing.

Accordingly, the judgment is affirmed.

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Kline, P.J.

We concur:

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Richman, J.

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Miller, J.

In re Hugo T. (A150367)